exv10w11w1






Exhibit 10.11.1




BIOTROVE, INC.




AMENDED AND RESTATED EMPLOYMENT AGREEMENT

(Albert A. Luderer)




     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated as of December 5, 2007 (the
“Effective Date”) and amended and restated as of May 30, 2008 (the “Amendment Date”) by and
between BioTrove, Inc. with a mailing address at 12 Gill Street, Suite 4000, Woburn MA 01801-1728
(the “Company”) and Albert A. Luderer, with a mailing address set forth under the
Executive’s name on the signature line (the “Executive”).



R E C I T A L S




     A. The Company is engaged in the business of researching, developing, manufacturing,
commercializing, providing service and selling systems and technologies for use in the field of
pharmaceutical drug discovery, biotechnology, materials discovery and molecular diagnostics (the
“Business”).



     B. The Company and the Executive desire to enter into this Agreement to reflect the terms and
conditions on which the Company employs the Executive.



     C. The Compensation Committee of the Company (the “Committee”) believes that it is in
the best interests of the Company and its shareholders to provide the Executive with an incentive
to continue his employment and to motivate the Executive to maximize the value of the Company in
the event of a Change of Control for the benefit of all Shareholders.



     D. The Committee believes that it is important to provide the Executive with certain benefits
upon Executive’s termination in certain instances or upon a Change in Control that provide the
Executive with enhanced financial security and incentive and encouragement for the Executive to
remain with the Company notwithstanding the possibility of a Change in Control and in return the
Company receives the benefits set forth herein.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged the Company and the Executive hereby agree as follows:



     1. Term. The Company agrees to employ the Executive, and the Executive agrees to accept such
employment, on the terms and conditions hereinafter as an at will employee. As an at-will
employee, subject to the terms and conditions hereof, the Company may terminate the Executive’s
employment at any time and for any reason or no reason. While employed by the Company, the terms
and conditions of the Executive’s employment shall be governed by this Agreement. The period in
which the Executive is employed shall be referred to herein as the “Term”.



     2. Capacity. The Executive shall be employed as President and CEO of the Company. In such
capacity, the Executive shall report to and be subject to the supervision of the



 









 




Board of Directors of the Company. The Company shall employ the Executive on a full-time basis and
the Executive shall devote his full time diligent professional efforts to the performance of his
duties as President and CEO of the Company. The Executive’s place of employment will be the head
office of the Company. The Executive shall adhere to the business policies of the Company in the
performance of his duties, including without limitation as set forth in the Employee Handbook and
as the Company may otherwise or additionally establish.




     3. Compensation and Benefits.



          (a) Base Compensation. The Company shall pay to the Executive a base salary at an annual rate
of US $350,000.00, payable in bi monthly installments of $14,583.33 each.




          (b) Compensation Adjustment. The Executive’s annual base salary shall be reviewed annually by
the Committee and may be adjusted upward at the sole discretion of the Committee.




          (c) Executive and Other Bonus Plans. The Executive shall be entitled to participate in any
bonus plan approved by the Committee in its sole discretion for Company executives in general.
While there are no guarantees that there will be a bonus plan in any particular year, or that any
bonus plan will be funded at any particular level, the Executive shall participate in any such plan
without discrimination. If a bonus plan is approved for a particular year, the Executive shall be
entitled to participate in the bonus plan and shall receive a bonus under the bonus plan consistent
with the terms of the bonus plan.




          (d) Benefits. The Executive shall have the benefits set forth on Exhibit A. The
Executive shall be entitled to participate in any other benefits program approved by the Committee
for Company executives in general and/or as set forth in the Employee Handbook as adopted by the
Company from time to time. The Executive’s participation in any benefit program shall be at the
same level of employee/employer contribution as has been set for all participants in such plans, in
accordance with applicable law.




          (e) Reimbursement of Expenses. The Company shall promptly reimburse the Executive for all
reasonable and necessary business expenses incurred by the Executive in the furtherance of, and in
connection with, the Business of the Company, including, without limitation, travel, board,
lodging, telephone and postage, in accordance with the Company policies in effect from time to
time. To obtain reimbursement, the Executive shall submit to the Company an itemized statement of
such expenses together with copies of bills and receipts. Notwithstanding the foregoing, the
Company may require additional documentation and/or explanations in order to reimburse the
Executive.




     4. Non-Competition.



          (a) Definitions. Certain capitalized terms used in this Section 4 shall have the following
meanings




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“Competing Organization” means any person or organization, including the Executive,
engaged in, or that anticipates becoming engaged in, researching, acquiring,
producing, distributing, providing investigating, developing, manufacturing,
marketing, supervising, licensing or commercializing a Competing Product or Service
anywhere in the world.




“Competing Product or Service” means any product, process, or service of any person or
organization other than the Company or any of its subsidiaries, in existence or under
development, (i) which is identical to, substantially the same as, in competition
with, or an adequate substitute for any product, process, or service of the Company or
any of its subsidiaries, in existence or under development, or about which the
Executive acquires Confidential Information, and (ii) which is (or could reasonably be
anticipated to be) marketed or distributed or is under development to be marketed or
distributed, as to compete with such product, process or service of the Company or any
of its subsidiaries.



          (b) Employment with a Competing Organization. Notwithstanding the provisions of
this Section 4, the Company agrees to permit the Executive to accept employment with a
Competing Organization, provided that the Executive’s duties with that Competing Organization
during the twelve (12) month period after termination of the Executive’s employment with the
Company, either directly or indirectly, do not relate to any Competing Product or Service,
and provided that the Executive shall have delivered to the Company a written statement,
confirmed in writing by the Executive’s prospective employer, describing the Executive’s
duties and stating that all such duties will be wholly unrelated, either directly or
indirectly, to any Competing Product or Service and the Executive will not be required or
asked to disclose any Confidential Information of the Company in the course of the
performance of his duties. The term “wholly unrelated” shall mean among other things that
the Executive will not work in, consult with, cooperate with or provide information to any
person, department or business segment of the Competing Organization which is researching,
acquiring, producing, distributing, providing, investigating, developing, manufacturing,
marketing, supervising, licensing or commercializing any Competing Product or Service.




          (c) Stipulations. As a material inducement to the Company’s willingness to
employ the Executive, and in order to protect the Company’s Confidential Information and
good will, the Executive agrees to the following stipulations:





	 	(i)	 	During the Term and for a period of one year after termination of the
Executive’s employment with the Company, the Executive will not, directly or
indirectly, solicit or divert business from any of the customers or accounts of the
Company.
	 
	 	(ii)	 	During the term and for a period of one year after the Executive’s
termination of employment with the Company, the Executive will not render services,
directly or indirectly, as an employee, consultant, director, advisor or otherwise,
to any Competing Organization.




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	 	(iii)	 	During the Term and for a period of one year thereafter, the Executive
will not solicit any of the Company’s employees or consultants to leave the employ
of the Company or hire or cause to be hired any person who was during or for six
months after the termination of Executive’s employment by the Company an employee
or consultant of the Company.





     5. Disclosure of Developments. The Executive will make full and prompt disclosure to the
Company of all inventions, original works or authorship, improvements, modifications, discoveries,
creations, methods, processes and developments which are within the scope of the Company’s actual
or reasonably anticipated business and which are made or conceived by the Executive alone or
together with others during the term of his employment, whether or not such developments are
patentable or protected as confidential information, whether or not such developments are in
process or reduced to practice, whether or not such developments are made or conceived during
normal working hours or on or off the premises of the Company (all of which are hereinafter
collectively termed “Developments”), and whether or not such Developments are assignable to the
Company under the provisions of Section 6 below.



     6. Assignment of Developments.



          a. The Executive agrees to assign and hereby assigns to the Company all title, interests and
rights, including, without limitation, intellectual property rights, in and to any and all
Developments, and agrees to assign to the Company any and all patents and patent applications
arising from such Developments, and agrees to execute and deliver such assignments, patents and
patent applications and other documents (including, without limitation, powers of attorney) as the
Company may direct, and agrees to cooperate fully with the Company during the Term, to enable the
Company to secure and maintain rights in said Developments in any and all countries. In the event
that any of such Developments are by operation of applicable state law excluded from this
assignment, the Executive agrees that the Company shall have a non-exclusive, fully paid license to
use for all purposes any such Developments not assigned to the Company under this Section 6. The
Executive understands and agrees that the Company shall determine, in its sole and absolute
discretion, whether an application for patent, copyright, mask work registration, or for any other
intellectual property right shall be filed on any Development which is assigned to the Company
under this Agreement, and whether such application shall be prosecuted or abandoned prior to
issuance or registration.




          b. If the Company is unable to procure Executive’s signature, within thirty (30) days
following delivery of written request therefor, on any document reasonably necessary to apply for,
prosecute, obtain, or enforce any patent, copyright, trademark or other right or protection
relating to any Development, whether by reason of Executive’s mental or physical incapacity,
Executive’s unavailability, or any other cause whatsoever, then Executive agrees and hereby
irrevocably appoints the Company and each of its duly authorized officers as the Executive’s agent
and attorney-in-fact, to act for and in Executive’s behalf to execute and file any such document
and to do all other lawfully permitted acts to further the prosecution, issuance, and enforcement
of patents, copyrights, or other rights or protections, with the same force and effect as if
executed and delivered by Executive.




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     7. Copyright. The Executive acknowledges that all works of authorship and all mask works that
fall within the scope of his employment are owned by the Company and are works made for hire.
Accordingly, the Executive agrees to assign and hereby assigns to the Company any and all
copyrights and mask work registration rights, and all other mask work rights in all material
prepared by him during the Term related to the Business.



     8. Confidentiality. During the course of his employment with the Company, the Executive shall
have access to, learn of, or participate in the development of the Company’s confidential
information or confidential information entrusted to the Company by other persons, corporations, or
firms. The Company’s confidential information includes matters not generally known outside of the
Company, such as, assays, nucleic acid sequences, amino acid sequences, vectors, cells, technical
data, methodologies, processes, know-how, trade secrets, experimentation, research and developments
relating to existing and future products and services marketed or used by the Company (whether or
not such products or services are actually realized or pursued by the Company), and also any
information which gives the Company a competitive advantage including, without limitation, data
relating to the general business operations of the Company (e.g., sales, costs, profits,
organizations, customer lists, pricing methods, etc.). The Executive agrees to hold such
information as strictly confidential and not disclose any such confidential information to any
person, corporation, or firm (other than the Company). The Executive further agrees not to make
use of such confidential information except on the Company’s behalf whether or not such information
is produced by his own efforts. These restrictions shall apply to all such information whether
written, oral, magnetic, optical or in any other form. The Executive understands and agrees that
his confidentiality obligations under this Section 8 shall continue both during his employment and
after termination of his employment until such confidential information becomes generally available
to the public through legitimate means. It is understood and agreed that specific information
which the Executive may receive, observe, perceive, create, develop, or learn while an employee of
the Company shall not be deemed to be generally available to the public merely because such
specific information is embraced by more general information that is generally available to the
public.



     9. Return of Information. Upon termination of his employment or at any time upon the request
of the Company, the Executive agrees to deliver to the Company all records, lab books, drawings,
notebooks, notes, reports, correspondence, documents, computer disks and tapes and other data in
any and all forms (without retaining copies) which pertain to the Company’s confidential
information (whether prepared by the Executive or others) or Developments, and also to return to
the Company any equipment, tools, computers or other devices owned by the Company and in his
possession. The Executive agrees that the above documents, data and devices are the exclusive
property of the Company and shall not be copied or removed from the Company premises except in the
pursuit of the business of the Company.



     10. No Conflicts. The Executive hereby represents that he has no present obligation to assign
to any former employer, or any other person, corporation or firm (other than the Company), any
Developments covered by Section 6. The Executive is not subject to any agreement, restriction,
right or interest in anyone limiting in any way the scope of this Agreement or his employment by
the Company or in any way inconsistent herewith. The



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Executive will not disclose to the Company, or induce the Company to use, any confidential
information of other persons, corporations, or firms including his present or former employers (if
any).




     11. Termination of Employment.



          (a) Change in Control. As used in Sections 11 and 12, a “Change in Control” shall be deemed
to have occurred upon the occurrence of any one of the following events:





	 	(i)	 	any “Person,” as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Act”) (other than the
Company, any of its subsidiaries, or any trustee, fiduciary or other person or
entity holding securities under any employee benefit plan or trust of the
Company or any of its subsidiaries), together with all “affiliates” and
“associates” (as such terms are defined in Rule 12b-2 under the Act) of such
person, shall become the “beneficial owner” (as such term is defined in Rule
13d-3 under the Act), directly or indirectly, of securities of the Company
representing 50 percent or more of the combined voting power of the Company’s
then outstanding securities having the right to vote in an election of the
Company’s Board of Directors (“Voting Securities”) (in such case other than as
a result of an acquisition of securities directly from the Company); or
	 
	 	(ii)	 	persons who, as of the date hereof, constitute the Company’s
Board of Directors (the “Incumbent Directors”) cease for any reason, including,
without limitation, as a result of a tender offer, proxy contest, merger or
similar transaction, to constitute at least a majority of the Board, provided
that any person becoming a director of the Company subsequent to the date
hereof shall be considered an Incumbent Director if such person’s election was
approved by or such person was nominated for election by either (A) a vote of
at least a majority of the Incumbent Directors or (B) a vote of at least a
majority of the Incumbent Directors who are members of a nominating committee
comprised, in the majority, of Incumbent Directors; but provided further, that
any such person whose initial assumption of office is in connection with an
actual or threatened election contest relating to the election of members of
the Board of Directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board, including by reason
of agreement intended to avoid or settle any such actual or threatened contest
or solicitation, shall not be considered an Incumbent Director; or
	 
	 	(iii)	 	the consummation of (A) any consolidation or merger of the Company where the
stockholders of the Company, immediately prior to the consolidation or merger,
would not, immediately after the consolidation or merger, beneficially own (as
such term is defined in Rule 13d-3 under the




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	 	 	 	Act), directly or indirectly, shares representing in the aggregate more than
50 percent of the voting shares of the Company issuing cash or securities in
the consolidation or merger (or of its ultimate parent corporation, if any),
or (B) any sale, lease, exchange or other transfer (in one transaction or a
series of transactions contemplated or arranged by any party as a single
plan) of all or substantially all of the assets of the Company; or
	 
	 	(iv)	 	the approval by the Company’s stockholders of any plan or
proposal for the liquidation or dissolution of the Company.





          (b) Notwithstanding the provisions of Section 1, the Executive’s employment hereunder shall
terminate under the following circumstances:




          (i) Death or Disability. The Executive’s employment hereunder shall terminate upon his death
or disability (as hereinafter defined). For purposes of this Agreement only, the Executive shall
be deemed disabled if in the opinion of the Committee, determined in good faith relying
specifically on the opinion of a qualified regionally recognized medical doctor (to be chosen by
the Committee) specializing in such alleged disability, the Executive is unable to substantially
perform services hereunder due to illness, injury, accident or condition of either a physical
disability or mental illness for greater than one hundred eighty (180) days in the aggregate in any
twelve (12) month period.




          (ii) Termination by the Company for Cause. The Company may terminate the Executive’s
employment for “Cause” (as hereinafter defined) after seven (7) days’ prior written notice to the
Executive setting forth in reasonable detail the nature of such cause if during such period the
Executive shall not have cured the basis therefor. For the purposes hereof, “Cause” shall be
determined by the Committee of the Company acting in good faith and shall mean any of the
following:





	 	(A)	 	the conviction of the Executive by a court of competent
jurisdiction of any felony involving dishonesty, breach of trust or
misappropriation or the entering of a plea by the Executive of nolo contendre
thereto;
	 
	 	(B)	 	the commission by the Executive of an act of fraud upon, or
breaching his duty of loyalty to, the Company or any of its subsidiaries;
	 
	 	(C)	 	a conviction for willful violation of any law, rule or regulation
governing the operation of the Company or any of its subsidiaries which is
punishable by imprisonment for six (6) months or more;
	 
	 	(D)	 	the substantial and continuing failure or refusal of the Employee,
after written notice thereof, to reasonably attempt to perform his or her job
duties and responsibilities (other than failure or refusal resulting from
incapacity due to physical disability or mental illness) which failure or




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	 	 	 	refusal is committed in bad faith and is not in the best interest of the
Company;
	 
	 	(E)	 	a breach by the Executive of Sections 4, 5, 6, 7, 8, 9 or 10 of
this Agreement, which breach continues for more than seven (7) days after written
notice has been given to the Executive, such notice setting forth in reasonable
detail the nature of such breach; or
	 
	 	(F)	 	the deliberate and willful disregard of the written rules or
policies of the Company which results in a material and substantial loss, damage
or injury to the Company.





          (iii) Termination Without Cause. The Company may terminate the Executive without Cause at
anytime subject to the terms and conditions hereof.




          (iv) Termination by the Executive for Good Reason. The Executive may terminate his or her
employment with the Company for Good Reason within one year following the occurrence of a Change in
Control. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the
following events:





	 	(A)	 	a reduction in the Executive’s then-current annual base salary
or a bonus percentage which is agreed in writing; or
	 
	 	(B)	 	any failure to offer the Executive’s the same level of benefits
offered to similarly situated employees; or
	 
	 	(C)	 	a significant diminution in the Executive’s managerial
authority, duties or responsibilities; or
	 
	 	(D)	 	the relocation of the Executive’s primary business location to a location
that is outside a twenty-five (25) mile radius from the Company’s current
primary business location, which for purposes of this Agreement is Woburn,
Massachusetts. For purposes of clarification, a relocation of more than
twenty-five (25) miles if the Executive is required to work out of an office
located more than twenty-five (25) miles from the current primary business
location for more than four (4) days per calendar month; or
	 
	 	(E)	 	the failure to pay the Executive any portion of his or her current base
salary, bonus or benefits within twenty (20) days of the date such compensation
is due, based upon the payment terms currently in effect, unless such payment
is prohibited by law, regulation or rule; or
	 
	 	(F)	 	the failure of the Company to obtain a reasonably satisfactory
agreement from any successor to assume and agree to perform this Agreement.




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provided that any of the events described in clauses (A), (B), (C), (D), (E) or (F) of this
Section 11(b)(iv) shall constitute Good Reason only if the Company fails to cure such event
within thirty (30) days after receipt from the Executive of written notice of the event
which constitutes Good Reason; provided, further, that “Good Reason” shall cease to exist
for an event on the sixtieth (60th) day following its occurrence, unless the
Executive has given the Company written notice thereof prior to such date.



     12. Payments Upon Termination of Employment or Change in Control.



          (a) Payments Upon Termination by the Company for Cause; Termination due to Death or Disability
of the Executive or Resignation of the Executive for any reason. If at any time during the Term,
the Company shall terminate the Executive for cause, if the Executive dies or suffers a disability
during the Term or if the Executive resigns for any reason (other than for Good Reason or Post
Change of Control Resignation), the Executive shall be entitled to receive from the Company only
such portion of the base salary (determined in accordance with Section 3(a)) as is accrued and
unpaid through the date of such termination. The Executive will immediately forfeit all then
unvested options and unvested restricted stock.




          (b) Payments Upon Termination Without Cause or for Good Reason. If at any time during the
Term (i) the employment of the Executive is terminated without Cause by the Company or (ii) the
Executive terminates the Executive’s Employment for Good Reason or (iii) if the Executive resigns
from the Company during the period between 90 days and 120 days following the occurrence of a
Change in Control (“Post Change of Control Resignation”), then in such case, subject to the
Executive signing the Company’s standard Termination and Release Agreement within 30 days of the
date of termination:





	 	(i)	 	The Company shall continue to pay to the Executive, or to his
personal representative(s) (in case of his death), the Executive’s base salary in
effect just prior to the date of such termination for a period equal to twelve
(12) months after the date of termination (the “Severance Period”) payable in
installments as and when such salary would normally have been paid as provided in
Section 3(a). In all cases, severance payments hereunder shall continue only so
long as the Executive continues to comply with and not breach the terms of this
Agreement and the Termination and Release Agreement and in the event of such
noncompliance or breach, all severance payments shall immediately be terminated.
	 
	 	(ii)	 	The Company shall maintain in effect during the Severance Period,
at its sole expense, all group insurance (including life, health, accident and
disability insurance) and, to the extent permitted by applicable law, all other
employee benefit plans, programs or arrangements in which the Executive was
participating at any time during the six (6) month period preceding such
termination provided that this obligation shall terminate as of the date when
then the Company is no longer required to make severance payments under Section
12(b)(i). During the Severance




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	 	 	 	Period if the Company is unable to maintain the health insurance plan in
which the Executive was participating or provide the Executive coverage
under the health insurance plan because the Executive is ineligible for
coverage under the terms thereof, the Executive shall be eligible to
receive continued group health plan benefits to the extent authorized by
and consistent with 29 U.S.C. § 1161 et seq. (COBRA), with the cost of the
regular premium for such benefits shared in the same relative proportion by
the Executive and the Company as in effect on the Date of Termination. In
all cases, provision of benefits hereunder shall continue only so long as
the Executive continues to comply with and not breach the terms of this
Agreement and the Termination and Release Agreement and in the event of
such noncompliance or breach, all benefits (except as required by law)
shall immediately be terminated.
	 
	 	(iii)	 	Subject to Section 12(c), all non-vested stock options or
restricted stock in the Company held by the Executive or in a trust established
by the Executive for the benefit of his spouse, children or heirs will continue
to vest according to its applicable schedule during the Severance Period but only
so long as the Executive continues to comply with and not breach the terms of
this Agreement and the Termination and Release Agreement and in the event of such
noncompliance or breach, all then unvested stock options and restricted stock
shall be immediately terminated. It is understood that such continued vesting
may disqualify the shares options from being treated as incentive stock options.
The Executive’s period for exercising the options shall be extended to the
earlier of the expiration of the Executive’s option agreement or 90-days
following the termination of the Severance Period to exercise any vested stock
options.
	 
	 	(iv)	 	The Company shall pay to the Executive on the Termination Date
accrued but unused vacation for the year.




In the event that the Executive’s participation in any of the foregoing plans, programs or
arrangements contemplated by Clause (ii) of Section 12(b) is barred by law or otherwise, or in the
event that any such plan, program or arrangement is discontinued or the benefits thereunder are
materially reduced during such period, the Company shall provide the Executive with benefits
substantially similar to those to which the Executive was entitled immediately prior to the date of
his termination of employment, to the extent and for the periods specified in this Clause (ii) of
Section 12(b).




          (c) Acceleration of non-Vested Options and Shares upon a Change in Control. Notwithstanding
anything to the contrary set forth herein, if a Change of Control occurs either while the Executive
is employed by the Company or during the Severance Period following the termination by the Company
of the Executive without cause, then notwithstanding anything to the contrary in any applicable
option agreement or stock-based award agreement, all remaining non-vested stock options or
restricted stock in the Company held as of the effective date of such Change in Control by the
Executive or in a trust established by the Executive for the benefit of



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his spouse, children or heirs will shall immediately accelerate and become exercisable or
non-forfeitable as of the effective date of the consummation of such Change in Control.




          (d) Section 409A. Anything in this Agreement to the contrary notwithstanding, if at the time
of the Executive’s termination of employment, the Executive is considered a “specified employee”
within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended
(the “Code”), and if any payment that the Executive becomes entitled to under this
Agreement is considered deferred compensation subject to interest and additional tax imposed
pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i)
of the Code, then no such payment shall be payable prior to the date that is the earliest of (i)
six months after the Executive’s Date of Termination, (ii) the Executive’s death, or (iii) such
other date as will cause such payment not to be subject to such interest and additional tax, and
the initial payment shall include a catch-up amount covering amounts that would otherwise have been
paid during the first six-month period but for the application of this Section.




          (e) Gross-Up. (i) In the event that the Total Payments (defined below) would be subject to the
Excise Tax (defined below) the Company shall pay to Executive an additional amount (the
“Gross-Up Payment”) such that after payment by Executive of all taxes (including any Excise
Tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such
taxes, Executive retains from the Gross-Up Payment an amount equal to the Excise Tax imposed upon
the Total Payments.





     (A) For purposes of determining whether any of the Total Payments will be subject to
the Excise Tax and the amount of such Excise Tax, (A) all “excess parachute payments” within
the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax
unless, in the opinion of law firm advising the Company on tax matters (“Tax
Counsel”), such excess parachute payments (in whole or in part) represent reasonable
compensation for services rendered (within the meaning of Section 280G(b)(4)(B) of the Code)
in excess of the base amount (within the meaning of Section 280G(b)(3) of the Code)
allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax,
and (B) the value of any non-cash benefits or any deferred payment or benefit shall be
determined by the Company’s independent accounting firm acting as the Company’s auditor (the
“Auditor”) in accordance with the principles of Sections 280G(d)(3) and (4) of the
Code. If the Auditor is prohibited by applicable law or regulation from performing the
duties assigned to it hereunder, then a different auditor, acceptable to both the Company
and Executive, shall be selected. The Company shall pay the fees and expenses of Tax Counsel
and the Auditor. For purposes of determining the amount of the Gross-Up Payment, Executive
shall be deemed to pay federal income tax at the highest marginal rate of federal income
taxation in the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the state and locality of
Executive’s residence on the date of termination (or if there is no date of termination,
then the date on which the Gross-Up Payment is calculated for purposes of this Section), net
of the maximum reduction in federal income taxes which could be obtained from deduction of
such state and local taxes.



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     (B) In the event that the Excise Tax is subsequently determined to be less than the
amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall
repay to the Company, within five (5) business days following the time that the amount of
such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment
attributable to such reduction. In the event that the Excise Tax is determined to exceed the
amount taken into account hereunder in calculating the Gross-Up Payment (including by reason
of any payment the existence or amount of which cannot be determined at the time of the
Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such
excess within five (5) business days following the time that the amount of such excess is
finally determined. Executive and the Company shall each reasonably cooperate with the other
in connection with any administrative or judicial proceedings concerning the existence or
amount of liability for Excise Tax with respect to the Total Payments.



          (ii) At the time that payments are made under this Section 12(e) if requested by Executive,
the Company shall provide Executive with a written statement setting forth the manner in which such
payments were calculated and the basis for such calculations including, without limitation, any
opinions, or other advice the Company has received from Tax Counsel, the Auditor or other advisors
or consultants (and all such opinions or advice shall be in writing, shall be attached to the
statement and shall expressly state that Executive may rely thereon). Executive and the Company
shall each reasonably cooperate with the other in connection with any administrative or judicial
proceeding concerning the existence or amount of liability for Excise Tax with respect to the Total
Payments. Notwithstanding anything herein to the contrary, this Section 12(e) shall be interpreted
(and, if determined by the Company to be necessary, reformed) to the extent necessary to fully
comply with the Sarbanes-Oxley Act, if applicable; provided that the Corporation agrees to
maintain, to the maximum extent practicable, the original intent and economic benefit to the
Executive of the applicable provision without violating the provisions of the Sarbanes-Oxley Act.




          (iii) Definitions. “Total Payments” shall mean the payments and benefits
received or to be received by Executive, whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement that constitute “parachute payments” as defined in
Section 280G of the Code (excluding the Gross-Up Payment) (“Parachute Payments”). For this
purposes, all of the payments and benefits received by Executive or to be received by Executive in
connection with a Change of Control or in connection with Executive’s termination of employment in
respect of a Change of Control (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, and Person whose actions result in a Change of Control
or any Person affiliated with Company or such Person shall be treated as Parachute Payments unless,
in the opinion of Tax Counsel reasonably acceptable to Executive and selected by the accounting
firm which was, immediately prior to the Change of Control, the Auditor, such payments or benefits
(in whole or in part) do not constitute Parachute Payments, including by reason of
Section 280G(b)(4)(A) of the Code. “Excise Tax” shall mean the excise tax imposed under
Section 4999 of the Code.




          (iv) Unless expressly provided otherwise, all of the payments due to Executive under this
Section 12(e) above shall be made within fifteen (15) days following the date of termination



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but in no event later than the end of the calendar year following the year in which the Excise Tax
is submitted to the applicable taxing authority.




     13. Notices. Any notices, requests, demands and other communications provided for by this
Agreement shall be sufficient if in writing and delivered in person or sent by registered or
certified mail, postage paid, to the Executive at the last address the Executive has filed in
writing with the Company, or, in the case of the Company, to the attention of its President. All
such communications shall be deemed given upon receipt. Any party may by notice in writing to the
other parties change the address to which notices to it or him are to be addressed hereunder.



     14. Miscellaneous.



          (a) Indemnification. During the period of his employment hereunder, the Company agrees to
indemnify the Executive in his capacity as an officer and Director of the Company and, to the
extent applicable, each subsidiary of the Company, all to the maximum extent permitted under
Section 145 of the Delaware General Corporation Law.




          (b) Entire Agreement. This Agreement constitutes the entire Agreement between the parties and
may not be changed except by a writing duly executed and delivered by the parties hereto.




          (c) Survival. Except as otherwise provided in this Agreement, the obligations of the Company
and the Executive contained in Sections 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14 shall survive the
termination of this Agreement.




          (d) Governing Law. This Agreement is governed by and shall be construed in accordance with
the internal laws of the Commonwealth of Massachusetts. The parties hereby consent to the
jurisdiction of the Superior Court of the Commonwealth of Massachusetts and the United States
District Court for the District of Massachusetts. Accordingly, with respect to any such court
action, the Executive (a) submits to the personal jurisdiction of such courts; (b) consents to
service of process; and (c) waives any other requirement (whether imposed by statute, rule of
court, or otherwise) with respect to personal jurisdiction or service of process.




          (e) Enforcement. In view of the substantial harm that will result from the breach by the
Executive of any of the covenants contained in Sections 4, 5, 6, 7, 8 and 9, the parties agree that
such covenants shall be enforced to the fullest extent permitted by law. Accordingly, if, in any
judicial proceeding, a court shall determine that such covenants are unenforceable because they
cover too extensive a geographic area or survive for too long a period of time, or for any other
reason, then the parties intend that such covenants shall be deemed to cover such maximum
geographic area and maximum period of time and shall otherwise be deemed to be limited in such
manner as will permit enforceability by such court. If any term or provision of this Agreement or
the application thereof to any circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement or the application to other persons and circumstances shall not be
affected thereby and each term and provision hereof shall be enforced to the fullest extent
permitted by law.




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          (f) Remedies. Executive agrees that his breach of any of the provisions of Sections 4, 5, 6,
7, 8 and 9 above will cause irreparable damage to the Company and that the recovery by the Company
of money damages will not alone constitute an adequate remedy for such breach. Accordingly, the
Executive agrees that such provisions may be specifically enforced against it or him, in addition
to any other rights or remedies available to the Company on account of any such breach, and the
Executive hereby waives the defense in any equitable proceeding that there is an adequate remedy at
law for any such breach and agrees that injunctive or other equitable relief will not constitute
any hardship upon the Executive.




          (g) Successors. This Agreement shall be binding upon the respective successors, assigns and
heirs of the parties hereto.




          (h) Legal Fees. The Company shall reimburse the Executive all reasonable and documented legal
fees, costs and expenses incurred in connection with contesting or disputing any failure by the
Company to pay any payments or take the actions set forth in Section 12 of this Agreement up to but
not exceeding $120,000. Notwithstanding anything to the contrary, the Company shall have no such
obligation to pay the Executive for such legal fees, costs and expenses if the final resolution of
such matter is determined by a court of competent jurisdiction to be in the Company’s favor.




          (i) Effect on Other Plans. An election by the Executive to resign after a Change in Control
under the provisions of this Agreement shall not be deemed a voluntary termination of employment by
the Executive for the purpose of interpreting the provisions of any of the Company’s benefit plans,
programs or policies. Nothing in this Agreement shall be construed to limit the rights of the
Executive under the Company’s benefit plans, programs or policies except that the Executive shall
have no rights to any severance benefits under any Company severance pay plan. In the event that
the Executive is party to an employment agreement with the Company providing for change in control
payments or benefits, the Executive must elect to receive either the benefits payable under such
other agreement or the benefits payable under this Agreement, but not both. The Executive shall
make such an election in the event of a Change in Control.




[Rest of page intentionally left blank; the next page is the signature page]




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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a sealed document on
the date first above written.



	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	ATTEST:	 	BIOTROVE INC.	 	 
	 
	 	 	 	 	 	 
	
 

Secretary

	 	By

Name:
	 	/s/ Robert H. Ellis
 

 Robert H. Ellis
	 	 
	 

	 	Title:
	 	Executive Chairman	 	 
	 
	 	 	 	 	 	 
	WITNESS:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Albert A. Luderer	 	 
	 	 	 	 	 
	 	 	Albert A. Luderer, Ph.D.	 	 
	 	 	Address:	 	 
	 	 	26 South Street	 	 
	 	 	W. Newbury, MA 01985	 	 






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Exhibit A




     1. Vacation. The Executive shall be entitled to four weeks paid vacation in each
calendar year during the term of the Agreement. Unused vacation time shall not be accrued from
year to year. The Executive shall also be entitled to all paid holidays recognized by the Company.
The Executive shall take no more than two weeks of vacation during any period consecutively.



     2. Insurance and Other Benefit Plans. The Executive shall be entitled to participate
in the Company’s hospitalization, medical, dental, long term disability, group-term life and other
similar insurance plans as they may exist and be generally available to the Company’s employees
from time to time in accordance with the terms of such plans.




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